All of us have “legal powers” — the ability to change our private legal relationships simply by deciding to change them. We can consent, waive, contract, transfer, and more. We also have analogous “moral powers,” at least on many leading views of interpersonal morality. In this seminar, we will study normative powers in both law and morality. What powers do we have? Why do we have the powers we have? What do we need to do to exercise them? We will also study the relationship between the two. How are the moral powers of consent and promise (un)like the legal powers of consent and contract, for instance, and to what extent do moral powers provide a justification for their legal counterparts?
We will focus on consent and promise as a way to get our bearings in the theoretical debates about normative powers. But the aim is to move beyond these topics and study issues that receive less attention. What powers are involved in making you my agent, for instance, or my fiduciary, or my business partner? Is a partnership just a complicated nexus of promises, for instance, or do relationships of this kind involve moral and legal transformations that are hard to capture in those terms? Or — to come at the question another way — why might we have the power to enter certain relationships (e.g., a fiduciary relationship) but not the power to dictate their terms (e.g., to alter the duty of loyalty)? Along the way, we’ll also ask whether the normative powers framework is even the most helpful way to understand this broader range of relationships.
In short, this is a class about the theoretical foundations of legal doctrines in contract, tort, property, and (broadly speaking) the building blocks of business law. By and large, the assigned readings in this course will be by moral and legal philosophers, but no background in philosophy is required.